Posted
by
Zonkon Friday January 27, 2006 @06:52PM
from the stop-right-there-citizen dept.

chill wrote to mention the decision handed down from the 9th Circuit U.S. Court of appeals in the case of Gilmore vs. Gonzales. The court found in the government's favour, saying "We hold that neither the identification policy nor its application to Gilmore violated Gilmore's constitutional rights, and therefore we deny the petition ... The Constitution does not guarantee the right to travel by any particular form of transportation."

Is there currently any form of travel where you don't have to submit to a "Papers Please" check? You have to have a driver's license to drive. We know about airplanes. If busses and trains also require ID, then how can you travel anonymously? I suppose that most taxi drivers won't check your id, but they'll sure want to check your checkbook before driving you cross-country.

If you can't travel anonymously, then you in fact do not have an independent right to petition your government.-russ

There is NOTHING in the constitution that guarantess you can "travel anonymously". It isn't even implied. Your statement has not basis in fact or reality.

There also is nothing in the Constitution about the right to use the bathroom without the supervision of a Government agent. You don't value that, now do you? Would you be upset if that ability were taken away?

How about the ability to travel more than 15 miles away from your home with applying for special permission in front of a Federal Review Board?

The Constitution isn't just remarkable for the rights it guarantees for citizens, but also that it (supposedly) restricts the rights of the government to what is specifically stated in the Constitution. Ideally, if the Constitution does not say that the government can regulate something, then they cannot regulate that thing.

(1) "the right of a citizen of one state to enter and leave another state";
(2) "the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state"; and
(3) "for those travelers who elect to become permanent residents, the right to be treated like other citizens of that state."

Indeed. However, if you read the histories presented on this site [articlev.com] it becomes quite clear that the SCOTUS has been systematically castrating the meaning of the 9th and 10th Amendments for at least 100 years.

It's a sad state of affairs when hand-picked Supreme Court justices reduce the Constitution to little more than historical triviality. We might as well live in a despotic empire with token popular elections for feel-good purposes.

I like the idea of repealing popular election of senators. Orginally it was considered to be "undemocratic" to have senators be appointed by states... but the thing is now senators are not responsible in any way to the states they represent. They are accountable to NOBODY else who is actually elected in the states. Think of the changes that would happen if state's goveners could directly "fire" senators for being stupid or not representing the state properly. What started out as an idea to "increase" de

Privacy is not the same thing as anonymity. At the very least the other party of the transaction (the airline) has a right to know who you are. Privacy dictates that they be careful who they share it with. However, since most airlines are subject to government regulation, they are considered a public form of travel. If you want privacy, charter a plane who will keep your trip confidential. (At least until they're supeonaed.)

IANAL, but my interpretation of Hiibel is that the police can only demand ID if they have reasonable suspicion that you have commited a crime. Otherwise, as Justice Kennedy points out in your quote, they're free to ask for identification (or anything else) but you have no obligation to comply. A random person walking down the street cannot be arrested for not providing ID. Which makes sense, because we aren't required to carry ID - you can always tell the officer you don't have any, and they have no right t

If you can't travel anonymously, then you in fact do not have an independent right to petition your government.

What in the world has the ability to travel anonymously have to do with your right to petition the governent? There's nothing in the Constitution about the first, one way or the other but the second is guarenteed.

If you're forced to declare your identity before being allowed to travel, you can be singled out and prevented from travelling to a specific destination, say, the court in which you plan to make your appeal.

You could also be singled out and prevented from voting. In fact this used to be done in some areas, to prevent certain special interest groups (frex, racial minorities) from reaching the polls.

If the ruling had stated "a private carrier can require whatever they damn well please", I wouldn't have a problem with it. But a ruling that we don't have a Constitutionally-enumerated right of travel is an incredibly dangerous precedent, as it is far too extensible into every aspect of our lives. Legally, it means you have no right to *so much as walk down the street* without showing your papers.

I did some more research,and Amtrack requires a photo ID. Greyhound does not obviously require a photo id from reading their website. In practice they may have the same secret law requirements; who can say, since it's a secret?-russ

You can't travel on the roads without a license plate, and I believe police have a wide variety of ways to stop you to ask more questions.

You're not required to have a license plate to ride a dirt bike, but if you go without a license plate, you're not legally allowed to cross state roads, so you can't go very far. Also, I think there are still laws that allow cops to stop you to make sure you're not trespassing on someone else's property?

Some of the logic needs work, here. Needing a driver's license is hardly the same as saying you can't travel anonymously. Unless a cop pulls me over and asks to seem my license, they have NO way of knowing where I'm driving and when I'm doing so just based on the fact that I have been licensed to drive a car in the US.

Not that I disagree with you, but in all of the US jurisdictions that I'm familiar with, you do not need ID to be a passenger in a car, a taxi, a bus, or a subway. On the other hand, for any commercial modes of transportation that cross state lines (ie: buses, trains, and airplanes), you'll need to show an ID to purchase a ticket. See a pattern here?

Actually you can be compelled to present ID by an office for any reason, or no reason at all. We really do have a "papers please" state at present. This is after the Supreme Court case Hiibel v. Nevada in 2004.

That ruling doesn't say what you claim it does. It refused to support demands for presenting ID. It does require providing your name if asked.

From the decision:

In contrast to the "credible and reliable" identification requirement in Kolender [which was overturned as unconstitutional], the Nevada Sup

1) Explain how my inability to travel anonymously prevents my petitioning the goverment for the redressing of grievances2) Point to where in the constitution they said you were guaranteed anonymity

1)'s a little tricky. It's not so much "prevents" as chills and infringes on.The right to travel to the seat of government to petition for redress is one of the privileges and immunities protected by the 14th amendment p&i clause.2) We have the first amendment because Peter Zenger was busted for running a printing press to print anonymous criticism of the king's goons.Talley v California, 1960, explains that the right to free speech includes anonymity and privacy. Thomas, concurring in McIntyre v Ohio Elections Commission, explains the history in more detail.The other two cases that discuss the constitutional right to anonymity are American Constitutional Law Foundation and Watchtower v Stratton. You can read those cases at majors.blogspot.com [blogspot.com] or findlaw.com.

It's not just if you're a derelict.
I can't imagine that it hasn't happened to anyone else on here. It has happened to me.

Minding your own business, causing no trouble, cops come up, and demand your papers. They detail you, question you about your intentions in a particular location and use your identification to establish if you have any wants, warrants, or are a known criminal type who may be in the area to cause trouble.

"Minding your own business, causing no trouble, cops come up, and demand your papers. They detail you, question you about your intentions in a particular location and use your identification to establish if you have any wants, warrants, or are a known criminal type who may be in the area to cause trouble.

Unamerican, huh?"

Actually, quite valid and entirely American. IANAL, but if you are in public, the cops can question you, and you can walk away. If they physically detain you, then you have them for false imprisonment and illegeal seizure. If you resist arrest at that point, then false imprisonment flies out the window. If they ask for your identification, you can refuse. If you comply, then you consented--entirely Constitutional. You can also challenge them. Without your consent, a warrant, then they must have a reasonable suspicion that there is a crime afoot and you're the culprit.

If they did all this to you, then you should file suit or stop complaining about it. Except, it happened two years ago, so the statutory limitations period has likely expired in your jurisidiction.

"When a law enforcement officer stops you anywhere, and you are not free to walk away, you are technically under arrest. If you don't believe it, try walking or driving away next time a law enforcement officer asks you to stop. You'll then be charged with any of a variety of charges, which will land you in jail for months to years."

Except, you can walk away. If you try it and they arrest you, then you can sue them for abuse of police power and any other number of torts. They may charge you with various crimes, but the prosecutor has to press them. Then, go for malicious prosecution. Especially when you a have a bouncer and other witnesses.

Being pulled over implies an investigation is underway, whether it's to confirm a broken taillight, speeding, or whether you have a car that's been reported stolen, and you are being detained. Being detained is not the same thing as being under arrest.Maybe I've just been lucky. I've been pulled over a couple of times for expired registration, and each time the officer was very polite. Each encounter I've had with a cop outside of the car has been polite and professional. A woman who lived directly acro

"Fahrenheit 451 was the product of five short stories. One short story that was used was inspired after Bradbury and a friend were walking around Los Angeles late one night. A police officer stopped and questioned them. A smart-alecky Bradbury told them they were just walking and explained how illogical it was for them to be planning a robbery, especially on foot. The police officer said, "Just walking? Well, don't do it again." Afterward, Bradbury wrote "The Pedestrian," a story about a future time when all pedestrians are treated as criminals. A political magazine called The Reporter published it after numerous rejections. "The Pedestrian" became the foundation on which Bradbury built his protagonist, Montag, of Fahrenheit 451."

You know, it's funny. Iw as talking to someone on the phone this evening. I didn't mention this story to him.

He was a passenger in a car this evening. They rolled through a just turned red light (just before the opposing traffic had a green light). Of course, as fate would have it, there was a cop sitting at the intersection waiting for the green light.:)

The driver was of course identified, but my friend, the passenger, was also identified. He argued a lit

Aside from the fact that this has nothing to do with your rights online:I personally have no problem with this. Given even the small chance of someone attempting to do something on a plane when i'm flying, i don't see a problem with them checking my or anyone elses ID and denying someone that flight based on a suspision. Of course one can never say "this is what i would do" until they are in that situation.

IMHO: This is a relatively minor issue anyway in the big scheme of "rights." That's just me maybe.

Why would you be any safer if everyone around you had an ID card? What are you going to do, hold it up in front of you as a shield against harm? Why are you safer if you know who you are travelling with?-russ

If there is "even a small chance" you are talking to a terrorist then we should all have our phone calls monitored.

If there is "even a small chance" of terrorism then we should all be forced to carry identification papers.

If there is "even a small chance" you may have searched for porn then we all should have our Google searches stored and analyzed.

You may want to ignore the minor issues, but eventually they will become major issues and then it will be too late.

My thought: we should start working on an Amendment to Constitution that makes a "Right to Privacy" explicit instead of depending on the judicial branch's interpretation of the 4th Amendment. At least it would be a worthwile campaign unlike the never ending battle to create an amendment to ban flag burning at gay marriage ceremonies. This is not my idea, by the way, this was proposed by Dan Savage in a NYT editorial last year (I think).

My thought: we should start working on an Amendment to Constitution that makes a "Right to Privacy" explicit instead of depending on the judicial branch's interpretation of the 4th Amendment. At least it would be a worthwile campaign unlike the never ending battle to create an amendment to ban flag burning at gay marriage ceremonies. This is not my idea, by the way, this was proposed by Dan Savage in a NYT editorial last year (I think).

No. That will just exacerbate the problem. The twisted logic people keep using -- assuming that if the Constitution doesn't explicitly grant you some right, then you don't have it -- is utterly wrong. It's backwards!! And it confirms the fear of the original framers that were opposed to adding the "bill of rights" in the first place: that it could be construed to mean that citizens' rights are limited to those that were spelled out.

So - where in the Constitution is the GOVERNMENT granted the right to know the identity of travellers? Where is this type of authority implied? Regulating interstate commerce is authorized, but that only applies to goods transported across state lines.

The point is, you have the right to travel anonymously because the government has NO RIGHT to stop you.

This was a no brainer. The airline industry is a private corporation, not a federally run operation. (Yes, they are regulated by the FAA, a governmental agency). He didn't have to travel by air. It is like driving a car. It is not a right but a privledge. Travel by airline is not federal transportation, it's just more convienent.What is more disturbing is the trend that if you walk down the street and are required to present identification by police. That is closer to the "let me see your papers" pro

Actually the question is "What federal law guarantees you the right to travel by other than your own means, that is, your own feet?"

The simple answer is none, because it is a NATURAL RIGHT. E.G. people are born with the right to travel freely and should not need permission to do so. This is one of those rights which clearly should fall under the 9th and 10th amendments. Remember the constitution DOES NOT grant rights. It merely lists a few of them that the framers thought were important, and which might not

The airline industry is a private corporation, not a federally run operation.

So is the phone company. So what?

The airlines are "common carriers" and receive major subsidies from the government (in the form of airports and air traffic control, just to name two). As part of being common carriers they are limited in their ability to arbitrarily refuse passengers. They must treat all comers equally.

The trouble is that the private corporations are claiming that they would be willing to let him fly without picture ID, but the government is preventing them from doing so with a secret law.

If your only mode of travel is to walk from California to the District of Columbia in order to petition your government, then you are *effectively* denied your right to petition. If you have to persuade or pay someone to drive you, you don't have a right to travel to petition the government; you are relying on someone else's right to travel. If I only have a right because someone else has a right, then I don't have that right.-russ

I'll grant that you've had that experience. Maybe even most people have. I had the exact opposite the one time I forgot ID. (I'm a mid-thirties, white, business attire type who flys quite a bit these days.) It screwed up some important plans.

The point is that certainty is missing, that secret law governs what happens, and that there is no recourse. Unlike any other transport service, I can't count on being allowed to fly, even with a contract for that service in place. Calling the airlines private at this point is silly - they are all but nationalized - bailouts whenever needed, security all but outsourced, and plenty of congresscritters to buy them the legislation they want.

And that's before I bitch about the specific requirements and creeping TOA/BB/SS/Whatever you want to call it.

Truly, we are approaching a situation in which certainty of contract and basic privacy is reserved for those wealthy enough to use blinds, have a share of a plane, the money to create a trust for private finance, etc. And the cost is going up.

Actually, the biggest issue in the case seems to have been ignored, which is that a law may not be a secret. Gilmore demanded to see the law or regulation which required him to show ID, and the government refused to show it to him.

Disclaimer: I used to be an airport security monkey (Tampa Int'l Airport).

There is not a secret law at work here. There is a law in the USC requiring the airlines to develop and implement security procedures. This law requires them to keep these regulations secret. The security guard in question probably had no knowledge of the USC, but he has been through training that told him he is not required (or allowed) to show any of his regulations to customers.

This arrangement works out ok if you see the airlines and the gov't as separate entities. If you see them as two intertwined octopus-like organisms then it starts to look more like an intentional evasion of Constitutional guarantees.

I'm not sure where I stand on this issue, exactly. I do know that I used to tell stories about just how bad airport security was, from the perspective of someone who knew. Since Sept 11 I don't think those stories are funny anymore.

I'm sick of this "it's not a right it's a priviledge" concept. Is that really the law? I always considered it a ploy used by the DMV to scare teenagers into driving safely.

You actually more or less hit it on the button. The idea that driving is a "privilege" was an innovation of the late 1950-1960's, when motor vehicle safety advocates were trying to push certain types of safety initiatives (which were apparently more palatable if the concept of driving were reinvented.)

Paez is an appeals court judge. He doesn't make the law and he doesn't decide what the Constitution means. He is only interested in upholding existing law and existing Constitutional interpretation (such as it is). If a case does not seem to fall within these limits (i.e. the issue is not "Constitutional"), he is obliged to only consider whether the trial was properly conducted. These are the checks an appeal court handles in the system.

The Constitution is not meant to include *all* our rights. That was by design. Just because a right is not in the Constitution does not mean it doesn't exist or can't exist. It's sloppy interpretation to say any given right that we "should" have is somewhere in the Constitution if only we can extrapolate it. Not all the rights we want/need/deserve are there.

The fact that the Federal system may not be working right, that Congress may have no interest in individual rights, etc. does not change the job of an appeals court.

I have always thought of the right to travel as one of the Big Three, along with bearing arms and speaking. After all, if you have those three the others tend to follow.

A guard at the border is the first thing a tyrant wants.

They didn't put "the right of a citizen to move freely among the several states, and to leave and return to the United States" in the Constitution explicitly because it underpins, and is implied by, the others. They should have, and we should do it now.

"The Constitution does not guarantee the right to travel by any particular form of transportation."

Time to get out the horse and buggy, with that federal logic...

who says you have the right to travel by horse and buggy, either? What's to stop them from requiring an ID for every form of transportation? No individual form is guaranteed, so therefore there's no guarantee that any form is.

who says you have the right to travel by horse and buggy, either? What's to stop them from requiring an ID for every form of transportation? No individual form is guaranteed, so therefore there's no guarantee that any form is.

You could, however, make a reasonably strong case that your right to liberty extended to using your own energy to move yourself around the country - in other words, riding a bicycle (potentially problematic) or running. You'd be surprised how far you can get on your own two feet - a

From the Website: "A decision is expected within the next few months. At stake is nothing less than the right of Americans to travel anonymously in their own countr"

I'm sorry, but case after case has shown that Anonymity is not constitutionally protected. If you can get someone to front for you (e.g. a newspaper), then they may choose to withhold your identity; possibly facing legal pentalities when they are court ordered to provide it. People seem to have this idea in their heads that Freedom of Speech == Freedom of Anonymity. Nothing could be farther from the truth.

The EFF would disagree with you [eff.org], oh and so would the Supreme Court of the United States [cornell.edu]. The Supreme Court has upheld anonymity throughout history, give or take. It's a subset of free speech. That's not to say that you can fly anonymous, but you can certainly speak you mind in anonymity if you wish.

The driving controversy in the case was not necessarily the ID requirement but that the regulations requiring ID are technically illegal under FAA regulations that require all regulations to be publically availab

A secret law in a free country. Now that should give you pause.Heh. What amuses _me_ (amuses because I'm a cynical bastard) is that a US federal organization (I have no idea which one) arrested a US citizen, held him illegally without providing legal counsel, without charging him with anything in particular and without even recognizing his human rights (much less any US constitutional rights), for an extended period of time, eventually concluded he probably wasn't all that dangerous anyway, and then finally released him on the explicit condition that he renounce his US citizenship. That this became publicly known and that no one in the US really cared much about it.Not only do US citizens not have any rights in the practical sense these days, but they don't even seem to care about it in the least.(The idealist in me is begging for someone to speak up and prove this story to be wrong in some important way . ..)

This case states that checking ID is legal, however I am wondering if they tried the same thing against "random" baggage searches, would it hold up? According to this ruling, since there are other means of transportation, the airlines can dictate checking IDs. However, the people who are checking the IDs and the baggage work for the government, so couldn't this be considered an unconstitutional search, especially in the baggage scenario?

For the same reason, that it's optional. The limitation on search and seziure has been interpreted to mean that police can just go and search your house and such for no reason, not that they can't ever search you or your things.

Also the amount of reason needed is variable. Since your home is considered to be very private, a warrant is mandidated. Cars are much less private, so probable cause is usually the standard (varies by state). Means the police need a specific reason and something to back it up, but they don't have to go in front of a judge first. Now if you go some place like a courthouse, then it's not a question, you WILL be searched, and so will your bags.

I thought that the TSA employees were federal employees now. When I fly domestically not checking in luggage nobody is checking my ID except TSA. The only ID check that is being done is at the security line to get to the gates. No one checks ID when I get onto the plane anymore.

I would hardly consider myself a conservative (at least in the Neocon sense), but it is a but discouraging to have individuals keep asserting "constitutional" rights which are completely illusory.

There is no constitutional right to complete anonymity, there never was. There is protection in the Fourth Amendment against unreasonable search and seizure. Asking for your identification before boarding a plane is no more unreasonable than asking for your ID when making a credit card transaction, if for nothing else to ensure you are not stealing somebody else's ticket (notwithstanding the security issues).

When the EFF (or anybody else) raises a fit over something that is this unobtrusive, it makes it more difficult for voices to be heard when our government is so outside the law it feels the need to bypass warrants, even those issued from secret rubber-stamping courts. Those who argue "security above all else" simply lump civil libertarians in with nut jobs who want to be as anonymous in real life as they are when playing Warcraft.

There is no constitutional protection for your momma' to not be slapped around be me and then taken from behind. That doesn't mean that it's legal, it just means that it is left up to the states to regulate such criminal activity.

The Bill of Rights was added to the Constitution specifically because the Constitution did not provide explicit protections from an overeager government. Fotunately, important individual protections such as women's sufferage were also later added.

The long forgotten and ignored 9th Amendment says it best:Amendment IX - The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

and the tenth reiterates it:

Amendment X - The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

By any reasonable reading that seems to means that if the Constitution doesn't say "you must show photo id

Asking for your identification before boarding a plane is no more unreasonable than asking for your ID when making a credit card transaction, if for nothing else to ensure you are not stealing somebody else's ticket (notwithstanding the security issues).

You're ignoring the real issue. Let's suppose I hand a ticket agent $200 in cash for a ticket on the next flight. It doesn't need to have my name on it at all to prevent theft (consider bearer bonds, tickets to a concert, or good old cash - those don't have your name on them either) but a secret rule forces not just the airlines but also the now government-employed screeners to check your identity. Why? If it were really about verifying the identity of e-ticket holders, the airlines would have justification, and they'd be the ones making the rules. Since they don't, and they're not, this is a legitimate legal problem. A private airline can impose whatever conditions it wants when offering me its services; the government doesn't have that right. That's the price it must pay for its monopoly on power.

Funny, because that's the way the Constitution was set up to begin with. Remember the Bill of Rights? There were those who were against including the Bill of Rights because they feared it would perpetuate the mindset that the only rights the people have are those that are explicitly written out, despite the inclusion of the 9th Amendment. Looks like they were right.

My step-father was in the "decontamination zone" of a very busy airport and was stopped by airport security who stopped him to do a search. They didn't say what they were searching for. They said they were conducting the search because they received a "tip." He didn't want any trouble and had nothing to hide so he let them do what they wanted to do. They searched him right there in front of many people. They did not even offer to do it privately. Kind of embarrassing. Not sure if this is legal or not

I have two problems with this decision. First, while I won't argue that there is an absolute right to anonymity, I have yet to hear an argument for the proposition that checking ID makes flying safer. The 9/11 terrorists had valid ID. If the government is using ID as a substitute for searches or X-ray or whatever is actually needed, they're kidding themselves.

The larger problem with this decision is the court's acceptance of the claim that there can be secret laws and regulations and specifically that this regulation is legitimately secret. The very idea of secret laws and regulations is inconsistent with open, democratic government.
Moreover, not a shred of justification has been offered for the secrecy of this particular regulation. (The only situation I can imagine in which a secret regulation might be legitimate is when it has to mention something whose existence is a legitimate secret, but even then it would seem that the regulation could be revealed to those that it affects (since they would know about the secret anyhow) and that it should be possible to publish the regulation in a more abstract form (e.g. classifying some class of weapons).) What conceivable basis could there be for classifying a regulation requiring passengers to produce ID?

If the government is using ID as a substitute for searches or X-ray or whatever is actually needed, they're kidding themselves.

This is old news, but (bomb + altimeter + airmail) == gaping hole in airport security. [senate.gov] We know about it, just like we knew about lax screening at airports before 9/11. Nothing is being done. Nothing will be done until commercial airliners start to explode.

"He asked to see the law demanding he show his 'papers' and was told after a time that the law was secret and no, he wouldn't be allowed to read it."

The constitution may no guarantee that a person be allowed to travel in any particular manner but I'm pretty sure "secret laws" are not constitutional and that is the real issue here.

US Gestapo: "Sir you are under arrest."Victim: "What for?"US Gestapo: "You broke the law Sir"Victim: "What law?"US Gestapo: "The secret law that we won't tell you about."Victim: "I didn't know we even had secret laws!"US Gestapo: "Ignorance of the law is no excuse Sir. Come with us."Victim: "I want my lawyer!"US Gestapo: "We aren't charging you Sir and you don't get to talk to your lawyer. Come with us."

US Gestapo: "Sir you are under arrest."Victim: "What for?"US Gestapo: "You broke the law Sir"Victim: "What law?"US Gestapo: "The secret law that we won't tell you about."Victim: "I didn't know we even had secret laws!"US Gestapo: "Ignorance of the law is no excuse Sir. Come with us."Victim: "I want my lawyer!"

US Gestapo: Since we're detaining you under a secret law, you don't get a lawyer.Victim: But I'm a citizen.US Gestapo: I'm sorry sir, but the law you're charged under strips you of your rights as a citizen, but we can't tell you any more than that.

Under the 'new' laws, there have been US citizens who have been held with neither trial, lawyer, nor charge under suspicion of being an "enemy combatant". Despite the Constitution saying you can't actually do that.

Sadly, the current political climate has allowed them to completely bypass what would have otherwise been de jure rights. It's quite troubling actually.

"Wild, unfounded and paranoid speculation."Really? You could have said the same thing ten years ago about American citizens being held indefinitely without being charged and without being allowed legal representation. It's happening now. The Bush administration justifies this action by telling us that they're only doing this to "terrorists." Yeah, great. If you're ACCUSED of being a terrorists they can make you disappear.

Twenty-five years ago it would have been laughable to suggest that the government

The article and the summary are missing the point. This was Gilmore v. Gonzales, not Gilmore v. the airlines. The argument, as I understand it, is that there is no published law or rule that says passengers have to show identification. The TIA says there is such a rule, but that it's a secret for security purposes. Gilmore argues secret laws are unconstitutional. I tend to agree with Gilmore.

The Government contends that the district courtlacked subject matter jurisdiction to entertain this actionbecause, under 49 U.S.C. 46110(a), Gilmore's claims canonly be raised by a petition for review in the courts of appeal.Defendants also contend that Gilmore lacks standing to chal-lenge anything other than the identification policy, such asthe Consumer Assisted Passenger Prescreening System("CAPPS") and so-called No-Fly and Selectee lists.

And, worse (bold is again mine):

After reviewing thesensitive security information materials that the Governmentfiled with this court ex parte and in camera, we agree with theGovernment that the district court lacked jurisdiction and thatGilmore had standing to challenge only the identification pol-icy.

Let's quickly recap what this all means in handy bullet-point format:

A U.S. citizen has been denied standing to challenge government policies affecting him

The court system apparently doesn't have an issue with ex parte proceedings, wherein only the court and one party are involved. If you can't see why this is bad...

No citizen, including the plaintiff in this case, can be informed as to what the in camera/ex parte material (the secret laws) say.

This court case tells us there are secret laws on the books, and we as citizens covered under them are not privy to them. This is bad, bad news.

I can't honestly say that I'm terribly disturbed that people are scrutinized more if they don't have ID when flying on a plane.

But having secret laws is totally, categorically unacceptable. There should be a Constitutional amendment against these sort of regulations. This isn't similar to a police state tactic, it is a police state tactic. There is no slippery slope; there is a motherfucking cliff that is being jumped off blindly in the hopes that there will be water instead of rocks at the bottom so we might only injure ourselves instead of dying.

The question is, how can we bring this *law* to trial? Procedurally, this law is difficult to pinpoint as the key to a case. Gilmore's case can be ruled on without this "secret" law every having to be submitted, because this is a private carrier. Further, we really don't care so much about the law in question as it's secrecy (which is ludicrous).

Now, what Gilmore probably tried to prove (haven't seen the case briefing) was that it is Constitutionally required that citizens be able to travel in such-an

I'll have to say that this lawsuit was made in poor judgment. The government & business has every right to expect you to produce identification before boarding an airliner. This ID check is not unreasonable nor troublesome to any passenger. Getting stopped/delayed from boarding because a single-dimensional ID check matched on a suspect ID is just stupidity on the part of the TSA.

Being subject to having carry-on baggage searched and walking through a metal detector also is not particularly unreasonable. Neither, IMHO, would be being scanned with a hand detector and/or 'sniffer' device (to detect drugs/explosives handling). It would be normal security for what amounts to being transported in a flying bomb with no/limited in-flight security.

A strip-/cavity-search would be where I would draw the line. Unless you provide me with very detailed information about your suspicions about what I am supposedly hiding on/in my body, I am not going to cooperate in any way whatsoever. If I passed a metal detector test, a hand scanner test and a 'sniffer' test, then you will not be able to provide me with any reasonable explanation for needing a strip-search (get a warrant for a cavity-search). Barring any reasonable explanation, it is a fourth amendment buster and I will not submit to it. I will leave and expect a full refund from the airline and/or TSA (or search authority) and that they should expect a lawsuit.

For the record, I am an independent with liberal leanings. I defend my civil, political and human rights when I believe they are being threatened.

For a while now, when flying domestic the airlines have not been checking ID. ID is only checked by the TSA.

Anyhow, how can checking ID possibly help stop terrorism?

1. Boarding cards, especially online are incredibly easy to fake.2. Fake ID is easy to come by.3. If someone has decided they are going to fly a plane into a building and kill themselves in the process why would they care about showing their ID? Or buying a ticket with their real name on it?4. etc..

The court apparently ruled that the ID requirement is not unconstitutional because the Constitution does not guarantee the right to travel by any particular form of tranportation. This is entirely irrelevant. The Constitution is a limit on the powers of government, not a grant of rights to the people. None of the powers of government enumerated in the Constitution or Amendments give the government the power to restrict US citizens from traveling within the United States by any means they desire. In particular, the government cannot require a passport for domestic travel, yet that is what this requirement does.

Furthermore, the Constitution does not give the government the power to enact and enforce secret laws or regulations. The very concept is anathema to the Rule of Law. If the government did any legitimate power to compel domestic travellers to present identification, it could only exercise that power by publishing laws or regulations that are subject to public scrutiny and judicial oversight.

Nonsense. If John Gilmore purchased a ticket from the airline in California, and boarded the plane in California, no interstate commerce is involved in that transaction, so the goverment can't use the interstate commerce clause to justify interfering.

If John purchased the ticket online or by phone, and the airline mailed it to him from another state, then interstate commerce would be involved, so the government could regulate the sale of the ticket. But that doesn't give them any basis for a regulation requiring presentation of ID to board the aircraft, as the act of boarding the aircraft is not commerce.

Nonsense. If John Gilmore purchased a ticket from the airline in California, and boarded the plane in California, no interstate commerce is involved

Not according to the SCOTUS definition of interstate commerce. The SCOTUS definition of interstate commerce includes growing wheat for yourself in your own farm for your own consumption. As established in Wickard v. Filburn [wikipedia.org] (1942).

Further, the reason why the medical marijuana case (Gonzales v. Raich [wikipedia.org] (2005)) was decided in favor of the U.S. Government was due to the fact that selling marijuana in California affects the underground market for the drug, which crosses state broundaries.

Given these two SCOTUS decisions it seems pretty clear that purchasing a ticket in order to leave one state and enter another is interstate commerce. Further, boarding in one state and exiting in one state is probably interstate commerce too as the option to buy that seat was open to others outside the state and thus your action influenced their market value.

It's a crappy interpretation, imho, but it's currently what we've got.

(1) DRIVER'S LICENSE.--The term ''driver's license'' meansa motor vehicle operator's license, as defined in section 30301of title 49, United States Code.(2) IDENTIFICATION CARD.--The term ''identification card''means a personal identification card, as defined in section1028(d) of title 18, United States Code, issued by a State.(3) OFFICIAL PURPOSE.--The term ''official purpose'' includesbut is not limited to accessing Federal facilities, boarding federallyregulated commercial aircraft, entering nuclear powerplants, and any other purposes that the Secretary shall determine.(4) SECRETARY.--The term ''Secretary'' means the Secretaryof Homeland Security.

"...any other purposes..." Hmmmmm. Kinda vague, no?

Full text of the law is here:http://tinyurl.com/9y4gk

The above link will bring up a PDF file. Search it for "Real ID". It will take you to almost the end of the 93 page document. The law is a rider on a defense appropriations bill. There is also stuff in there to beef up US border security.

The article I read about the national ID is here:http://tinyurl.com/aln9j

No matter what the government does, a large swath of the population, not to mention the powers-that-be themselves, will always consider it legal and appropriate. The President could outright suspend habeus corpus, conduct summary executions, and carpet-bomb cities, and he would still have the utmost certitude that what he was doing is right, and millions of Americans would agree wholeheartedly. Probably half, perhaps more, of Americans don't really care about freedom in any substantive way, and to them civil rights are "liberal" issues only ACLU-types would favor over the security and safety of even one (American) life. And they all know that the ACLU is a bunch of wacko far-leftists hellbent on undermining all that is good about the United States.

So let's stop pretending that if only Americans knew exactly what the government was doing that they would demand change, much less accountability. The Right has won by demonizing anyone who is skeptical of government power as anti-American, liberal, terrorist-sympathizing, and so on. By the time that whitebread, middle-class Americans are pissed off by the "show me your papers or go to jail for an indefinite length of time, and no we don't have to charge you with anything" state that America is moving towards, that apparatus will be too entrenched by precedent and public apathy and it will be too late to undo it completely. There may be a symbolic backlash a few years from now, but the recovery of civil rights will be less than the loss, and the progression will be ever downward.

Freedom requires a skepticism of government power. Every law, every prerogative of the police, every restriction, has to be greeted with a raised eyebrow and "why do you need that power?" for freedom to survive in society. That spirit is hard to find in Americans, and you can't kindle it in someone who doesn't have it.

One of my first jobs was with an electronics company that made circuit boards for cameras that went in police cars. If the flashing lights were on, then the camera was on. My second week on the job I remember the boss saying that the police departments had requested a modification--they wanted a way to turn off the camera while the flashing lights were still on. The first thing that popped into my mind was "why would they want to turn off the camera?" My entire political philosophy is built up from that question, but if your instincts are more trusting and credulous when it comes to government, then the question would never occur to you. Freedom requires skepticism of government motives. People have to understand and believe that, like Lord Acton said, power does corrupt. Not might or could, but does.

Physical travel and the First Amendment are inextricably intertwined. If you can't travel, then how can you exercise your right to Assemble? You can't Associate either, because you won't be able to get anywhere. Your right to Free Speech is also affected. You can say what you want, just not at that conference you wanted to attend but couldn't because you weren't allowed to get on a plane.

This is mostly right. Travel and assembly are related. Travel and free association are related. The last argument, however, is totally specious. No one told Gilmore he couldn't go to Maryland, they only said he couldn't do it (1) by airplane (2) without showing ID. This is not unreasonable given the current so-called state of war, and in any event it's certainly not unconstitutional. Denial of a particular mode of travel is not the same as denial of travel. This is substantially what TFA said.

The 4th Amendment

Refusing a government "request" for ID triggers a severe penalty, such as loss of free movement. And lest we forget, having to show your ID is a search without a warrant.

This one is trickier. The Fourth Amendment [cornell.edu] only applies to government actors. I can decide to not let you into my birthday party until you show me ID. That's fine, and it's not unconstitutional, because I'm not the government. The first answer to Gilmore's statement is that airlines are private companies, hence not government actors. However, there's an agency argument to be made, that the airlines are acting on behalf of the government, when they comply with federal regulations. Assuming the airlines are government actors, the Fourth Amendment applies only to unreasonable searches and seizures. Reasonability of the search itself turns on whether there is a socially reasonable, legitimate, or justifiable expectation of privacy. Read United States v. Knotts [findlaw.com]. Does society at large think it unreasonable, illegitimate, or unjustifiable to have to show ID to board airplanes? The very fact that Gilmore's case is news seems to indicate the answer is 'no'.

In this court case, the core issue of our right to travel has been obscured by other side issues, secret law being the most outrageous of them.

The core issue that the right to travel isn't at stake here has been obscured by rhetoric. Travel by airplane isn't a right, it's a convenience, and the constitution doesn't deal in conveniences.

Secret Law

There is no published statute or regulation requiring traveler identification. The airlines and the federal government insist that federal law requires passengers to show identification, yet can point to no published source of that requirement.

This is right on the money. Secret law is the purview of tyrants and dictators. If the federal government wants to regulate the airline industry by passing a law requiring ID checks, it is entirely within their power to do so.

IMHO: Judges are smart, and they can see through rhetoric. This isn't an issue of freedom to travel, it's an issue of secret regulations and star chambers. The Bush administration will be remembered for two things: the so-called 'war on terror', and the vast and secret power grabs by the executive branch in order to fight that war. Maybe if Gilmore had focused his primary attack on the secret law angle, he might have had better success. Instead, he treated it as a "side issue".

1. Secret law? There's so many conflicts right there alone, this should have been the first thing in the courts, not the actual ID bit.

2. US Airport security is nothing more than a joke. It's designed to make people "feel" safer, not actually "be" safer. Big difference.

Anyone who has been to any airport knows how weak it is.

The 9/11 Terrorists realized to get past security they needed 1 thing. And they could buy it at walmart: A razor blade. As long as they shaved, they weren't suspicious.

No matter what the US does, until they thoroughly check every passenger, it's just a matter of time. The only reason we haven't had another attack, is nobody has been in the mood to attack. Nothing more. There's no possible way to dispute that. There are as many chances to attack as their are flights in the US.

No matter what the technique to security is, unless it covers everyone, and everything, they will succeed.

I love the racial profiling idea... how stupid that is. Remember this guy [cnn.com]? Any idea what they were planning to do with him? Yea... get past security. And the State Dept. said at the time there were dozens of Americans "missing" in similar situations in that area.

Until you have 360 degrees of security, your still easily attacked. It just involves your enemy taking the extra step of walking around you first and finding that hole.

THIS is why I can't stand American politics... it's all designed to "FEEL GOOD". Nobody gets anything done.

You're missing Gilmore's point, which was not that the government had no right to ask for ID, but rather that a free people should not be subject to secret laws. He asked to see the statute that allowed them to check for IDs, and they refused to show it to him. If they can do this, than they can claim ANYTHING they want is authorized by the secret law. For instance, airport security could claim that attractive women are required to give screeners oral sex to prove they are not terrorists, or else they will not be allowed to board the plane. This is very different from a traffic citation, wherein the officer will state the specific statute violated on the ticket, which can then be looked up in any library.

I am less concerned about having to show ID at the airport than I am about things like CAPS-II which could deny people the right to travel. While the court did not rule on CAPS-II, this opinion seems to make it harder to challenge these larger policies.If you go and read the Supreme Court majority opinion in "Plessy v. Fergusson" you will be struck by how seemingly narrow and reasonable the ruling seems to be on the surface, and yet when you see how it became the foundation for segregation in our society.

here are some more unconstitutional laws: Requiring ID at the movie theater to verify age. Requiring ID when buying alcohol Requiring ID when buying cigarettes Requiring ID when buying firearms Requiring ID in order to get a drivers licence and so on and so forth.

You're missing the point altogether. Someone else has already pointed out that purchasing tickets at the movie theater is an entirely different situation, regulated not by law but by theater chains. However, it does play along with the rest of your